Russell and Duenes

Follow the Wall of Separation to It’s Logical Conclusion

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laycockRegarding the establishment of “secular agnosticism,” the Supreme Court has said that “the State may not establish a ‘religion of secularism’ in the sense of affirmatively opposing or showing hostility to religion, thus ‘preferring those who believe in no religion over those who do believe.’”[1] Professor Douglas Laycock argues that the Establishment Clause should uphold “the principle of most nearly perfect neutrality toward religion and among religions.”[2] That is, the government should attempt to “neither encourage[] nor discourage[] religious belief or practice.”[3] Yet Laycock also holds that “[f]or the issues that are most controversial, nonpreferential aid is plainly impossible. No prayer is neutral among all faiths, even if one makes the mistake of excluding atheists and agnostics from consideration.”[4] Moreover, for Laycock, “[g]overnment-sponsored religious symbols or ceremonies, whether in schools, legislatures, courthouses, or parks, are inherently preferential.”[5]

The problem with Laycock’s view is that he holds a hidden premise that he has not proven, and that I believe he cannot prove, namely, that there is such a thing as religious neutrality in the public square and in public education. The atheist or agnostic is certainly not religiously neutral, for he or she believes either that there is no God, or that if God exists, God is unknowable or incomprehensible. These are not non-religious views about which some court can remain “neutral.” If the government scrubs the public square clean of all religious symbols, will that constitute “religious neutrality?” The devout Muslim who walks down the street and sees that no government-sponsored religious symbols may be present anywhere will not conclude that her religion is being treated “neutrally” along with all other worldviews. She will rightly conclude that her worldview has been marginalized and privatized by the government in favor of an overweening secularism, which is itself a kind of religion, by the Supreme Court’s own admission.[6]

Nowhere is this more pronounced than in the educational context. If, as Laycock rightly points out, our society is suffused with “Catholics and Jews, and significant populations of Muslims, Hindus, Buddhists, Haitian voodooists . . . Sikhs and Rastafarians . . . Mormons, the Jehovah’s Witnesses, and the Scientologists,”[7] how will officially agnostic, secular, government-sponsored public schools be religiously neutral toward all of them? The public school that teaches that sex is mainly a health issue and has little if anything to do with marriage is not promulgating a religiously neutral viewpoint to the Christian sitting in the classroom who takes the Bible’s view on sexual practices. The public school that, by law, must exclude all rival theories to Darwinian evolution as an explanation of how the universe and humankind within it arrived here[8] is not speaking in a religiously neutral way to the Muslim who believes that Allah created everything and upholds everything by His power. The public school history teacher who teaches that God is not active in history and intimates by silence that God has nothing to do with history’s ultimate course and destiny (if it even has a “destiny”), is not conveying a religiously neutral “truth” for the Hindu who believes in endless cycles of Karma or for the Christian who believes that God “made all the nations, that they should inhabit the whole earth; and marked out their appointed times in history and the boundaries of their lands.”[9] As one columnist has concluded: “When school systems deal with issues of sexuality, religion, politics, or the family, there is always an overriding agenda – the agenda of whichever side has greater political clout. . . . and there is no way a government-run, one-curriculum-fits-all education system can satisfy all sides. The only way to end the political battles over schooling . . . is to separate school and state.”[10]

Thus, at least when it comes to education, I disagree with Laycock’s principle of governmental neutrality toward religion, for I argue that no such thing is possible, or even desirable. School is one of those “most controversial issues” where government aid of any sort will not be religiously neutral.[11] Hence, if advocates of the strict “wall of separation” between church and state view are serious about that view, then I believe they should follow its implications to their logical conclusion, particularly in the educational context, though there may be other relevant contexts.

-D


[1] School District of Abington Tp. v. Schempp, 374 U.S. 203, 225 (1963).

[2] See Nonpreferential” Aid to Religion: A False Claim About Original Intent, 27 Wm. & Mary L. Rev. 875, 922 (1985/1986).

[3] Id.

[4] Id. at 920.

[5] Id.

[6] See Schempp, 374 U.S. at 225.

[7] “Nonpreferential Aid to Religion, at 919-20

[8] see Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707, 709 (M.D. Pa. 2005)

[9] Acts 17:26.

[10] Jeff Jacoby, A Call for Separation of School and State, The Boston Globe, Mar. 4, 2007, http://www.boston.com/news/education/k_12/articles/2007/03/04/a_call_for_separation_of_school_and_state/.

[11] See Laycock, “Nonpreferential” Aid to Religion, at 920.

[12] See Id. at 915.

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